Supreme Court of Canada

United Steelworkers of America, Local 4589 et al. v. Bombardier-M.L.W. Limitée, [1980] 1 S.C.R. 905

Date: 1980-04-22

United Steelworkers of America, Local 4589 and Yvon Robert Appellants;

and

Bombardier—M.L.W. Limitée Respondent;

and

Bernard Brody Mis en cause.

1980: January 31; 1980: April 22.

Present: Dickson, Beetz, Estey, Mclntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Labour law—Arbitration of a grievance—Interpretation of a collective agreement—Jurisdiction of the arbitrator—Natural justice.

On February 5, 1973, respondent (Bombardier) terminated the employment of appellant Robert, who had complained of pains in his knees and been absent from work since January 11, 1973. Bombardier referred to clause 13.06(d)(1) of the collective agreement, which provided that an employee “absent for 24 consecutive months” lost accumulated seniority. Appellant filed a grievance alleging that in fact his case was covered by clause 13.06(d)(3) of the agreeement, according to which the permissible period of absence is 48 months if an employee is absent as a result of an industrial accident or an “illness occurring or contracted while in the Company’s plant”. The arbitrator allowed the grievance and reversed the decision of the company, holding that clause 13.06(d)(3) applied to an illness which appeared during the period of employment. The Superior Court authorized a writ to be issued evoking this case before it, and a majority of the Court of Appeal upheld this judgment. The lower courts accepted the interpretation suggested by the company, that the illness referred to in clause 13.06(d)(3) could only be an industrial illness, and held that any other interpretation altered the collective agreement and constituted an excess of jurisdiction.

Held: The appeal should be allowed.

The text in question is not so clear as to need no interpretation. It would undoubtedly have been otherwise if, instead of this ambiguous provision, the expression “industrial illness” had been used, but this is precisely the expression which the parties apparently wanted to avoid, especially as there was no hesitation in

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using the word “industrial” in the same clause 13.06(d)(3), which contains the expression “industrial accident”. The courts should play only a limited role in supervising the legality of arbitral awards. They should refrain from substituting their own interpretation of a collective agreement for that of the arbitrator, and avoid intervening when the interpretation which the arbitrator has given to the agreement is one which the wording of the agreement may reasonably bear. In the case at bar, the arbitrator was faced with an ambiguous provision. He exercised his interpretative jurisdiction and did not alter the collective agreement by deciding as he did.

Respondent further maintained that the arbitrator had infringed the principles of natural justice, since after warning the parties that in his opinion the words “illness occurring or contracted while in the Company’s plant” meant an “industrial illness”, he altered his opinion without ordering a reopening of the trial and a rehearing. This argument is without foundation. The opinion expressed by the arbitrator during the hearing is not even an interlocutory judgment. It is a preliminary opinion and respondent knew or ought to have known that the arbitrator could change his mind. In any case, the employer was alerted by the written plea of the union, in which the interpretation ultimately adopted by the arbitrator is set forth. Nothing prevented the employer, in its reply to this plea, from seeking a reopening of the trial or a rehearing. In the absence of such a request, the arbitrator was justified in concluding that respondent had no other evidence to adduce.

Syndicat des professeurs du CEGEP du Vieux-Montréal v. CEGEP du Vieux-Montréal, [1977] 2 S.C.R. 568; Association of Machinists and Aerospace Workers v. Hudson Bay Mining and Smelting Co. Ltd, [1968] S.C.R. 113; Zeller’s (Western) Ltd. v. Retail Wholesale and Department Store Union, [1975] 1 S.C.R. 376; Dickson v. Her Majesty in Right of the Province of New Brunswick, [1979] 2 S.C.R. 13, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec, affirming a judgment of the Superior Court[^1] authorizing a writ of evocation to be issued. Appeal allowed.

Giuseppe Sciortino and Pierre Grenier, for the appellants.

Pierre J. Perrault and Jacques L. Archambault, for the respondent.

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English version of the judgment of the Court delivered by

BEETZ J.—The Superior Court—Deslandes J.—authorized a writ to be issued evoking a grievance arbitration case before it. This decision was upheld by a majority of the Court of Appeal, consisting of Bélanger and Bernier JJ.A., Owen J.A. dissenting.

The appeal is against this judgment.

The first issue is whether the Court of Appeal and the Superior Court correctly held that, in interpreting the collective agreement as he did the arbitrator, Brody, altered this agreement and exceeded his jurisdiction.

The second issue is whether the arbitrator Brody departed from the principles of natural justice, as was held by the Superior Court. In the Court of Appeal, only Bélanger J.A. expressed an opinion on this point, and he concurred with the Superior Court.

The following circumstances gave rise to the dispute.

Appellant Yvon Robert was hired by respondent Bombardier on December 5, 1971. He had previously been employed by this company, from 1967 to May 19, 1971, but this earlier period of service has no bearing on the case. His duties consisted of folding metal sheets in a crouching position. He complained of pains in his knees and was absent from work from January 11, 1973, for an extended period as a result of illness. On February 5, 1975, the company terminated his employment. Yvon Robert had accumulated a little more than three years’ seniority. The company alleged that the twenty-four months of absence allowed by clause 13.06(d)(1) of the collective agreement had expired.

13.06—Loss of seniority: All accumulated plant and occupational seniority will be cancelled for any one of the following reasons:

(d)…

(1) If, for any reason including lay-off due to lack of work, an employee having less than fifteen (15) years of seniority is absent for twenty-four (24) consecutive months…

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On March 5, 1975, Yvon Robert filed a grievance which was heard by the arbitrator Brody on May 19, 1976. Yvon Robert contended that his case was covered not by clause 13.06(d)(1) of the collective agreement, but by clause 13.06(d)(3):

(3) If an employee is absent as a result of an industrial accident or of an illness occurring or contracted while in the Company’s plant, the permissible period of absence without loss of seniority will be forty-eight (48) months, which may be extended with the written consent of the Company.

On November 6, 1977, the arbitrator allowed the grievance and reversed the decision of the company.

The first point at issue turns entirely on the interpretation of the words “illness occurring or contracted while in the Company’s plant”.

At the hearing before the arbitrator, and subsequently before the Superior Court, the Court of Appeal and this Court, the company maintained that these words can only refer to an “industrial illness”, and that any other interpretation results in unlawfully altering the collective agreement.

This is not the interpretation adopted by the arbitrator:

[TRANSLATION] “An illness occurring or contracted while in the Company’s plant”: this latter case covers two distinct possibilities, since the use of two different words refers to two different ideas.

The first possibility relates to “an illness contracted while in the Company’s plant”. In brief, such an illness may be regarded as synonymous with an industrial illness, since its cause is work-related.

The second possibility does not refer to an industrial illness. “An illness occurring while in the Company’s plant” is not an illness the cause of which is necessarily work-related. The Robert dictionary gives the following meaning of the word “déclarer” [occur]: disclose, uncover, reveal, appear: while the Larousse dictionary gives the following meaning for the same word: disclose, appear. An illness occurring while in the plant is therefore not an illness the cause of which is necessarily work-related, but rather an illness which is disclosed, which is uncovered, which is revealed or which appears while in the plant.

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The question then is as to what meaning should be given to the words “while in the Company’s plant”.

If they are given the limited meaning of “while physically in the Company’s plant”, this leads to the following extreme case:

—an employee falls victim to an illness not related to work just before going through the plant door on the way home: this employee is covered by clause 13.06(d)(3);

—an employee falls victim to an illness not related to work when he has just stepped onto the sidewalk and is outside the plant: this employee is not covered by clause 13.06(d)(3).

This example indicates that a literal meaning should not be given to the words “while in the Company’s plant”, because this would make application of the clause illogical.

The words “while in the Company’s plant” must be given the meaning of “during the period of employment”. With this interpretation, the purpose of clause 13.06(d)(3) is to protect an employee who is absent as the result of an illness, even if this absence is not due to an industrial illness. Such an employee is accordingly given greater protection than an employee who is absent without a valid reason.

Clause 13.06(d)(3) applies to an employee who is absent as a result of illness, even if this illness is not work-related, if this illness appeared during the employee’s period of employment with the Company.

In these circumstances, the union did not have to prove that Yvon Robert’s illness was an industrial illness. It only had to show that the complainant was in fact ill during his absence. The employer did not dispute the fact of Yvon Robert’s illness. It only disputed the cause of the illness, arguing that it had not been proven that the illness was work‑related.

The Superior Court accepted the interpretation suggested by the company. It held that [TRANSLATION] “the illness referred to in clause 13.06(d)(3) can only be an industrial illness”, and that by his interpretation [TRANSLATION] “the arbitrator was adding to the collective agreement a clause which did not exist”.

In the Court of Appeal, Bélanger J.A. expressed the opinion that the words [TRANSLATION] “illness occurring or contracted while in the Company’s plant”… “seem clear and do not require any

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interpretation”; and he adopted the opinion of the trial judge.

Bernier J.A. wrote with more nuance that [TRANSLATION] “the powers enjoyed by an arbitrator to interpret a provision which may contain some ambiguity cannot be a basis for arbitrary action”. He affirmed the Superior Court judgment on the ground that the arbitrator had altered the collective agreement.

In my view, and I say this with deference for the opposite opinion, the text in question is not so clear as to need no interpretation. It would undoubtedly have been otherwise if, instead of this ambiguous provision, the expression “industrial illness” had been used, as it is familiar to businesses and unions, being used in ss. 2(1)(7) and 105 of the Workmen’s Compensation Act, R.S.Q. 1964, c. 159. However, this is precisely the expression which the parties apparently wanted to avoid, especially as there was no hesitation in using the word “industrial” in the same clause 13.06(d)(3), which contains the expression “industrial accident”. Can the arbitrator then be blamed for seeking some other interpretation?

Furthermore, an interpretation to the effect that the words “illness occurring or contracted while in the Company’s plant” mean “industrial illness” would be open to question: it might be argued that such an interpretation excludes illness occurring in the plant, and thereby alters the collective agreement. Appellants conceded that if the arbitrator had adopted this questionable interpretation suggested by the respondent, there would have been no basis for an evocation, because it could not be maintained that such an interpretation is absurd; but neither can it be argued that it is a necessary interpretation.

It is now well established that the courts should play only a limited role in supervising the legality of arbitral awards. They should refrain from substituting their own interpretation of a collective agreement for that of the arbitrator, and avoid intervening when the interpretation which the arbitrator has given to the agreement is one which the wording of the agreement may reasonably bear:

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It is true that an arbitration board must respect the provisions of a collective agreement that define its authority. This Court recently applied this rule in Air-Care Ltd. v. The United Steel Workers of America, [1976] 1 S.C.R. 2. However, it is the duty of an arbitration board to interpret and apply the provisions of the agreement. A court may interfere with such interpretation and application only if they are an abuse of authority within the meaning of art. 846 C.C.P.

It was unquestionably the duty of the arbitration board hearing the grievance to decide how the new agreement would apply to a notice of termination given under the earlier agreement. Undoubtedly, the existence of this other agreement was one of the facts to be taken into account and the arbitrators certainly were not giving the new text a construction it could not bear …

Pigeon J., speaking for the Court in Syndicat des professeurs du CEGEP du Vieux-Montréal v. CEGEP du Vieux-Montréal[^2], at pp. 572 and 573. See also Association of Machinists and Aerospace Workers, Flin Flon Lodge No. 1848 et al. v. Hudson Bay Mining and Smelting Co. Ltd.[^3]; Teller’s (Western) Ltd. v. Retail, Wholesale and Department Store Union, Local 955 and Dolores Bonsal[^4]; Dickson and The New Brunswick Teachers’ Federation v. Her Majesty in Right of the Province of New Brunswick[^5].

In the case at bar, the arbitrator was faced with an ambiguous provision and his task was not an easy one. Both parties suggested interpretations to him, each of which might be open to question but neither of which was unreasonable. In my opinion, he exercised his interpretative jurisdiction and did not alter the collective agreement by deciding as he did.

The other question at issue, that relating to the principles of natural justice, arises from the following circumstances.

Judging only from the allegations of the motion in evocation, which must be taken as proven at this stage of the proceeding, the arbitrator Brody warned the parties several times during the hear-

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ing of April 15, 1975, that in his opinion the words “illness occurring or contracted while in the Company’s plant” meant an “industrial illness”, and that accordingly, appellants had the burden of proving that the extended absence of Yvon Robert was due to such an illness. Furthermore, these allegations are confirmed by a passage contained in a written interlocutory decision, rendered on an objection to the evidence.

The parties then submitted written pleadings. The employer’s plea is dated June 7, 1976, the union’s plea March 23, 1977, and the employer’s reply August 1, 1977. The arbitrator summarized these pleas in his award of November 6, 1977. It is in the plea of March 23, 1977, that the union, apparently for the first time, put forward the interpretation of 13.06(d)(3) which the arbitrator ultimately adopted.

Respondent’s contention is that the arbitrator should not have thus altered his opinion while the case was under advisement without ordering, of his own motion, a reopening of the trial and a rehearing. It maintains, inter alia, that it was thereby deprived of an opportunity to establish an earlier practice of the parties regarding interpretation of the collective agreement, and that there was a breach of natural justice. As mentioned above, the argument was upheld by the Superior Court and by one of the judges of the Court of Appeal.

In my opinion, this argument is without foundation. The opinion expressed by the arbitrator during the hearing is not even an interlocutory judgment. It is a preliminary, provisional opinion, and respondent knew or ought to have known that the arbitrator could change his mind. What shows this is the written plea of the employer dated June 7, 1976. It is not contained in the record, but it is summarized by the arbitrator, and the employer is in fact found to have pleaded that the disputed phrase in clause 13.06(d)(3) means “industrial illness”. It is hard to understand the reason for such an argument if the employer regarded the point as settled.

In any case, the employer was alerted by the written plea of the union dated March 23, 1977, in

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which the interpretation ultimately adopted by the arbitrator is set forth. Indeed, in its reply of August 1, 1977, the employer attempted to refute this interpretation. However, the arbitrator does not indicate that the employer sought a reopening of the trial or a rehearing, and respondent does not allege that it made such a request. I do not see anything that prevented it from doing so, if it thought such a request was necessary, in its reply of August 1, 1977.

In my view, if there was no such request by respondent, the arbitrator was justified in concluding that respondent had no other evidence to adduce, that it only intended to plead on the law and that it was satisfied to do so in writing: Komo Construction Inc. v. Quebec Labour Relations Board[^6], at p. 175.

I therefore conclude that the arbitrator did not infringe the principles of natural justice.

The Superior Court further decided a third point, namely that the arbitrator had erred in allowing medical certificates relating to Yvon Robert’s illness to be filed without cross‑examination of the doctors concerned, and over respondent’s objections. However, the Superior Court acknowledged that, in view of his interpretation of the collective agreement, the arbitrator did not rely on this evidence in arriving at his conclusion. The Court of Appeal did not consider the point and it does not appear necessary for me to do so either.

The appeal should be allowed, the decision of the Court of Appeal and the judgment of the Superior Court should be reversed and the motion in evocation should be dismissed, with costs throughout.

Appeal allowed with costs.

Solicitors for the appellants: Melançon, Hélie, Marceau, Grenier & Sciortino, Montreal.

Solicitors for the respondent: Perrault & Archambault, Montreal.

[^1]: [1978] C.S. 554.

[^2]: [1977] 2 S.C.R. 568.

[^3]: [1968] S.C.R. 113.

[^4]: [1975] 1 S.C.R. 376.

[^5]: [1979] 2 S.C.R. 13.

[^6]: [1968] S.C.R. 172.